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REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 1711 September Term, 1999

SOREN HARBOM

v.

JUDITH HARBOM

Moylan, Davis, Salmon, JJ.

Opinion by Davis, J.

Filed: October 3, 2000

Appellant Soren Harbom was granted a Judgment of Absolute Divorce from appellee Judith Harbom in the Circuit Court for Howard County on June 8, 1999. Appellant filed an action for

divorce on grounds of adultery in May 1996, and appellee filed a counterclaim for divorce on grounds of constructive desertion in the same month. under which A consent order was entered on May 12, 1997, agreed to pay appellee pendente lite

appellant

alimony of $2,500 per month and pendente lite child support of $1,500 per month. the parties' two After the appointment of counsel to represent minor children, the parties entered into a

Stipulation and Agreement Regarding Custody, under which they were awarded joint legal custody of both children and appellee was granted primary into a on physical Consent custody. entered Exceptions This on agreement June the 25, was 1997.

incorporated After a

Order

hearing

appellant's

to

Master's

Written Report and Recommendations, the court awarded appellee $1,600 in retroactive alimony and $800 in retroactive child

support in an order entered on June 10, 1998. The case proceeded to trial on the merits on September 8, 1998, on appellant's After the complaint trial and appellee's its amended of

counterclaim.

court

filed

Judgment

Absolute Divorce and appellant filed a Motion to Alter or Amend Judgment on June 11, 1999, the court denied the motion on August 16, 1999, and this appeal ensued. Appellant raises six

- 2 questions raising for our review and appellee filed of a cross-appeal, questions

eight

questions.

Because

some

these

address the same issues, we list them together, rephrased, and renumbered as follows: I. Did the trial court err in determining that the prenuptial agreement was valid and enforceable? Did the trial court err in classifying certain property as marital or nonmarital? Did the appellant appellee? trial court err to transfer title in ordering of a van to

II.

III.

IV.

Did the trial court indefinite alimony? Did the support? trial court

err

in

granting

appellee

V.

err

in

calculating

child

VI.

Did the trial court err in making a combined child support and alimony award that constitutes 70.5% of appellant's net income? Did the trial court consider whether to dependency deduction? err in refusing to grant appellant a

VII.

VIII.

Did the trial court err in awarding appellee counsel fees?

We answer questions one through six and question eight in the negative and question seven in the affirmative, thereby

affirming in part and reversing in part the judgment of the trial court.

- 3 -

FACTUAL BACKGROUND
The parties were married on June 21, 1986, in Montgomery County, Maryland. Prior to the marriage, on March 31, 1986, the

parties entered into an antenuptial agreement under which each party waived "any right or claim . . . in the property of [the other party, including] all future growth, interest, . . . or changes in assets, traceable to [the other party's] current

ownership of the property."

Appellant also agreed to transfer

title to a home known as the Billow Row property to himself and appellee as tenants by the entireties, following the marriage. Appended to the document was a listing of appellant's

substantial premarital assets, without valuations; whether this appendix was actually shown to appellee is disputed. At the

time of the marriage, appellant's assets included a significant stake in A/S Plastmontage, a Danish plastics company founded by appellant's father; a stake in Plastmo Ltd., a Canadian

subsidiary of Plastmontage; several loans to Plastmo Ltd. and Plastmo Inc., an American subsidiary of Plastmontage; several investment and deposit accounts; a property in Springfield,

Oregon; and the Billow Row property. traceable to a gift of shares in

Most of these assets were Plastmontage in 1962 from

appellant's parents to appellant.

The gift was subject to the

condition that, "[i]n case our son might get married, both the

- 4 stocks and the dividends from them, or anything that might

replace these, will belong to him as (his) separate property." Appellee had no substantial assets at the time of the marriage. After the parties married, they resided at the Billow Row home, which was transferred to the parties as tenants by the entireties on March 24, 1988. Two children were born to the

marriage -- Kirsten Harbom, on October 13, 1987 and Lise Harbom, on September 24, 1990. In March 1989, the parties purchased as

tenants by the entireties a new home on Crows Nest, which was purchased in cash, using nonmarital funds of appellant. Billow Row home was retained as a rental property. The parties' marital difficulties began in 1990. arguments financial over the prenuptial in agreement, There were lack of The

appellee's assets,

interest

appellant's

appellee's

relationship with appellant's family, and appellant's lack of interest in sexual relations. engaged alleges in erratic and Appellant alleges that appellee violent behavior; and appellee

sometimes was

that

appellant

verbally

abusive

emotionally

detached. the grounds

Appellant refused to attend counseling sessions on that appellee's therapist had told her that "no

marriage could be whole with a Prenuptial Agreement."

Appellee

began an affair in July 1994, that continued until July 1995, when she informed appellant of the affair and of her desire to separate. The parties agreed to stay together and work on the

- 5 marriage, but the problems continued and appellee met a man in December 1995, with whom she later had another affair.

Appellant filed for divorce on May 7, 1996. The parties resided at the Crows Nest home until their

separation on October 1, 1996. executed a deed transferring

In December 1996, the parties the Billow Row and Crows Nest

properties to appellant as sole owner, in exchange for a payment of $260,000 from portion appellant of this to appellee. to Appellee purchase a used home a on

substantial

payment

Clarkson Drive, which she owns with her father and where she and the children reside. Appellant is forty-one years of age, holds a high school degree, and has worked for Plastmontage and Plastmo, Inc.,

during his adult life. holds an undergraduate in

Appellee is forty-one years of age and teaching degree, At with the a current of the

certification

special

education.

time

marriage, she was working as a special education teacher for Calvert County Public Schools. Additional facts will be provided as they become relevant to our discussion of the issues raised in this appeal.

DISCUSSION I

- 6 Alleging that "[appellant] admitted that neither the assets or their values were disclosed," appellee contends that "case law holds this failure invalidates the agreement." We begin

with the proposition that, under general contract principles, parties should be free to enter into contracts and such

agreements entered into freely, voluntarily, and with knowledge of all relevant facts should not be set aside simply because one of the parties subsequently decides that he or she made a bad deal. College of Notre Dame v. Morabito Consultants, Inc., et

al., 32 Md. 158, 173-74 (2000); Missouri Kan. & Tex. Ry. Co. v. Harriman Bros., 227 U.S. 657, 33 S.Ct. 397 (1913). Absent

fraud, mistake or duress, courts are averse to interfere with the right to freely contract unless an agreement is

unconscionable in its affect or the manner of procurement or one party is manifestly in a superior bargaining position, i.e., a confidential relationship. Even so, that inequality may be

cured by the access to legal counsel by the party in the less advantageous bargaining position. As to antenuptial agreements,

forty-five years ago, Maryland followed the general rule that "an antenuptial contract which provides for, facilitates or

intends to induce a separation or divorce of the parties after marriage is contrary to public policy, and is therefore void." Cohn v. Cohn, 209 Md. 470, 475 (1955). The rationale was based

- 7 on the Court's distinction between agreements that have a

natural tendency to induce separations, and those that represent a fair and reasonable compromise, after a separation had

occurred or when one is in immediate contemplation.

Id. at 476.

The Court of Appeals, however, in Frey v. Frey, 298 Md. 552 (1984), repudiated the prohibition of antenuptial agreements

based on public policy, observing that "the common law is . . . subject changing to modification or by judicial decision in light this of

conditions

increased

knowledge

where

Court

finds that it is a vestigue of the past, no longer suitable to the circumstances of our people." Butler, 292 Md. 174 (1981)). Id. at 562 (citing Felder v.

The Court held that "the policy

reasons supporting Cohn [are] no longer suitable today." As a result of that holding, the Court concluded that there was no longer to be a distinction drawn upon whether an

antenuptial agreement is in contemplation of death of one of the spouses or the dissolution of the marriage. The Court then went

on to pronounce that the validity of such agreements must be evaluated upon the factors indicated in Hartz v. Hartz, 248 Md. 47 (1967). In Hartz, the Court characterized the nature of the

relationship between the parties and the requirement for there to be valid agreement:

- 8 Levy [v. Sherman, 185 Md. 63 (1945)] and Ortel [v. Gettig, 207 Md. 594 (1955)] establish the law of Maryland to be that there is a confidential relationship between a man and a woman who are about to enter into an antenuptial agreement whether or not they are then engaged and whether or not the marriage is to be one of convenience; that this confidential relationship calls for frank, full and truthful disclosure of the worth of the property, real and personal, as to which there is a waiver of rights in whole or in part, so that he or she who waives can know what it is he or she is waiving. If there is adequate knowledge of what that frank, full and truthful disclosure would reveal, this may serve as a substitute though there has been no such disclosure. If there is neither proper disclosure nor actual knowledge and the allowance made to the one who waives is unfairly disproportionate to the worth of the property involved at the time the agreement is made, the burden is cast upon the one who relies on the agreement to prove that it was entered into voluntarily, freely and with full knowledge of its meaning and effect. The reviewing court is much more apt to find there was voluntary and understanding execution if the one who later asserts invalidity had independent legal advice as to the execution. . . . The real test in a determination of the validity of an antenuptial agreement is whether there was overreaching, that is, whether in the atmosphere and environment of the confidential relationship there was unfairness or inequity in the result of the agreement or in its procurement. Frank, full and truthful disclosure of what is being relinquished (or in lieu thereof actual knowledge otherwise available or obtained) is the key that turns the lock of the door leading to impregnable validity.

- 9 (Emphasis added; footnotes omitted.) Citing Lindey, Separation Agreements and Antenuptial

Contracts,

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